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EXHIBIT 10.4
________________________________________________________________________________
VT INC.,
AS TRUSTEE OF
WORLD OMNI LT
AND
WORLD OMNI FINANCIAL CORP.
FORM OF
SUPPLEMENT 1996-B TO
SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 1996
________________________________________________________________________________
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TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE SIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 6.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ALFI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ALFI LP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Current Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Eligible Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ERISA Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
First Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1996-B SUBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1996-B SUBI Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1996-B Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1996-B SUBI Portfolio . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1996-B SUBI Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nonrecoverable Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Origination Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trust Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Origination Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . 5
Securitization Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicer Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicer Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Unfunded Current Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE SEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REPRESENTATIONS AND WARRANTIES OF SERVICER . . . . . . . . . . . . . . . . . . . . . . 6
Section 7.01. Organization and Standing . . . . . . . . . . . . . . . . . . 6
Section 7.02. Authorization, Execution and Delivery; No Conflicts . . . . . 6
Section 7.03. Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7.04. Enforceability . . . . . . . . . . . . . . . . . . . . . . . 7
Section 7.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CREATION OF 1996-B SUBI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 8.01. Initial Creation of 1996-B SUBI Portfolio. . . . . . . . . . 7
Section 8.02. Subsequent Additions to 1996-B SUBI Portfolio . . . . . . . . 8
Section 8.03. Servicer Payment in Respect of Certain
Leases and Leased Vehicles . . . . . . . . . . . . . . . . . 10
Section 8.04. Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1996-B SUBI PORTFOLIO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 9.01. Servicer Bound by Servicing Agreement . . . . . . . . . . . . 11
Section 9.02. Collection of Monthly Lease Payments and Remittances;
Application of Proceeds; Accounts. . . . . . . . . . . . . . 12
Section 9.03. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9.05. Payment of Certain Fees and Expenses; No Offset . . . . . . . 18
Section 9.06. Servicing Compensation . . . . . . . . . . . . . . . . . . . 19
Section 9.07. Repossession and Sale of Leased Vehicles. . . . . . . . . . . 20
Section 9.08. Indemnification by Servicer. . . . . . . . . . . . . . . . . 20
Section 9.09. Third Party Claims . . . . . . . . . . . . . . . . . . . . . 20
Section 9.10. Insurance Policies . . . . . . . . . . . . . . . . . . . . . 20
Section 9.11. Servicer Not to Resign; Assignment . . . . . . . . . . . . . 21
Section 9.12. Obligor Insurance Coverage in Respect of Leased Vehicles . . 22
Section 9.13. Corporate Existence; Status; Merger . . . . . . . . . . . . . 22
Section 9.14. Mobile Leased Premises. . . . . . . . . . . . . . . . . . . . 23
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
STATEMENTS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 10.01. Reporting by the Servicer . . . . . . . . . . . . . . . . . . 23
Section 10.02. Annual Accountants' Reports . . . . . . . . . . . . . . . . . 24
Section 10.03. Other Certificates and Notices from Servicer . . . . . . . . 24
Section 10.04. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 11.01. Events of Default; Termination of
Servicer as to 1996-B SUBI Portfolio . . . . . . . . . . . . 25
Section 11.02. No Effect on Other Parties . . . .. . . . . . . . . . . . . . 29
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ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 12.01. Termination of Agreement . . . . . . . . . . . . . . . . . . . 29
Section 12.02. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.03. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.05. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 12.06. Inspection and Audit Rights . . . . . . . . . . . . . . . . . . 31
Section 12.07. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 12.08. Article and Section Headings . . . . . . . . . . . . . . . . . 31
Section 12.09. Execution in Counterparts . . . . . . . . . . . . . . . . . . . 31
Section 12.10. Rights Cumulative . . . . . . . . . . . . . . . . . . . . . . . 31
Section 12.11. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 32
Section 12.12. Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . 32
EXHIBITS:
EXHIBIT A - Schedule of 1996-B Leases and 1996-B
Leased Vehicles as of the Initial Cutoff
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B - Form of Servicer's Certificate . . . . . . . . . . . . . . . . . . . B-1
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SUPPLEMENT 1996-B TO
SERVICING AGREEMENT
SUPPLEMENT 1996-B TO SERVICING AGREEMENT (the "Supplement"),
dated as October 1, 1996, between VT INC., an Alabama corporation, as trustee
(hereinafter, together with its successors and assigns, the "Origination
Trustee") of WORLD OMNI LT, an Alabama trust (the "Origination Trust"), and
WORLD OMNI FINANCIAL CORP., a Florida corporation (the "Servicer").
RECITALS
A. Auto Lease Finance L.P. ("ALFI LP"), the Origination
Trustee and, for certain limited purposes set forth therein, First Bank National
Association (successor trustee to Bank of America Illinois, an Illinois banking
corporation) (together with its successors, "First Bank") have entered into that
certain Second Amended and Restated Trust Agreement dated as of July 1, 1994
(amending and restating that certain original Trust Agreement dated as of
November 1, 1993, among Auto Lease Finance, Inc. ("ALFI"), the Origination
Trustee and First Bank, and that certain Amended and Restated Trust Agreement
dated as of June 1, 1994 among ALFI, ALFI LP, the Origination Trustee and First
Bank) as amended by that certain Amendment No. 1 to Second Amended and Restated
Trust Agreement dated as of November 1, 1994, among the same parties (as so
amended and restated, and as it may be further amended, supplemented or
modified, the "Origination Trust Agreement"), pursuant to which ALFI and the
Origination Trustee formed the Origination Trust for the purpose of taking
assignments and conveyances of, holding in trust and dealing in, various Trust
Assets (as defined in the Origination Trust Agreement) in accordance with the
Origination Trust Agreement. ALFI and the Servicer have entered into that
certain Limited Partnership Agreement dated as of June 1, 1994, as amended and
restated by that certain First Amended and Restated Limited Partnership
Agreement dated as of July 1, 1994, pursuant to which ALFI LP was formed and
ALFI contributed to ALFI LP all of its right, title and interest in and to the
Origination Trust.
B. The parties hereto also have entered into that certain
Second Amended and Restated Servicing Agreement dated as of July 1, 1994 (as the
same has been supplemented, is supplemented hereby and may be further amended,
supplemented or modified, the "Servicing Agreement"), amending and restating
that certain original Servicing Agreement dated as of November 1, 1993, and that
certain Amended and Restated Servicing Agreement dated as of June 1, 1994, which
provides for, among other things, the servicing of the Trust Assets by the
Servicer.
C. Concurrently herewith, and as contemplated by the
Servicing Agreement and the Origination Trust Agreement, ALFI LP, the
Origination Trustee, First Bank and World Omni Lease
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Securitization L.P. (the "Seller") are entering into that certain Supplement
1996-B to Trust Agreement dated as of October 1, 1996 (the "1996-B SUBI
Supplement"), pursuant to which the Origination Trustee, on behalf of the
Origination Trust and at the direction of ALFI LP, which also will be at that
time a beneficiary of the Origination Trust, will create and issue to ALFI LP a
special unit of beneficial interest in the Origination Trust, or SUBI (as
defined in the Origination Trust Agreement) (such SUBI, the "1996-B SUBI"),
whose beneficiaries generally will be entitled to the net cash flow arising
from, but only from, the related SUBI Portfolio (as defined in the Origination
Trust Agreement) (such SUBI Portfolio, the "1996-B SUBI Portfolio"), a SUBI
Certificate (as defined in the Origination Trust Agreement) representing a 99.8%
beneficial interest in the 1996-B SUBI (such SUBI Certificate, the "99.8% 1996-B
SUBI Certificate") and a SUBI Certificate representing the remaining 0.2%
beneficial interest in the 1996-B SUBI (such SUBI Certificate, the "0.2% 1996-B
SUBI Certificate" and, together with the 99.8% 1996-B SUBI Certificate and any
replacements of either of them, the "1996-B SUBI Certificates"), all as set
forth in the Origination Trust Agreement and the 1996-B SUBI Supplement.
D. Also concurrently herewith, ALFI LP and the Seller are
entering into that certain SUBI Certificate Purchase and Sale Agreement dated as
of October 1, 1996, pursuant to which ALFI LP is selling to the Seller, without
recourse, all of ALFI LP's right, title and interest in and to the 1996-B SUBI
and the 1996-B SUBI Certificates, all moneys due thereon and paid thereon or in
respect thereof and the right to realize on any property that may be deemed to
secure the 1996-B SUBI, and all proceeds thereof, all in consideration of the
cash payment to ALFI LP of an amount equal to the Aggregate Net Investment Value
(as defined in the Securitization Trust Agreement) of the 1996-B SUBI Portfolio
as of the Initial Cutoff Date (as defined in the 1996-B SUBI Supplement).
E. Also concurrently herewith, and as contemplated by the
Servicing Agreement and the Origination Trust Agreement, the Seller and First
Bank, as Trustee (the "Securitization Trustee"), are entering into that certain
Securitization Trust Agreement dated as of October 1, 1996 (the "Securitization
Trust Agreement") pursuant to which the 99.8% 1996-B SUBI Certificate will be
transferred to the Securitization Trustee, in that capacity, in connection with
a Securitized Financing (as defined in the Origination Trust Agreement) by the
Seller, but the 0.2% 1996-B SUBI Certificate will be retained by the Seller and
not used in connection with such Securitized Financing.
F. The parties desire to supplement the terms of the
Servicing Agreement insofar as they apply to the 1996-B SUBI, the 1996-B SUBI
Portfolio, and the 1996-B SUBI Certificates to provide for further specific
servicing obligations that will
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benefit the holders of the 1996-B SUBI Certificates and the parties to and the
beneficiaries of the Securitized Financing contemplated by the Securitization
Trust Agreement, all as generally contemplated by the Servicing Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the 1996-B SUBI
Portfolio:
ARTICLE SIX
DEFINITIONS
SECTION 6.01. DEFINITIONS.
For all purposes of this Supplement, except as otherwise
expressly provided or unless the context otherwise requires, (a) unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings attributed to them by Section 1.01 of the Servicing Agreement, by
Section 0.01 of the Origination Trust Agreement, by Section 13.01 of the 1996-B
SUBI Supplement, or by Section 1.01 of the Securitization Trust Agreement, as
applicable, (b) the capitalized terms defined in this Supplement have the
meanings assigned to them in this Supplement and include (i) all genders and
(ii) the plural as well as the singular, (c) all references to words such as
"herein", "hereof" and the like shall refer to this Supplement as a whole and
not to any particular article or section within this Supplement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
(e) the term "or" shall include "and/or", and (f) any reference herein to the
"Origination Trustee, acting on behalf of the Origination Trust," or words of
similar import, shall be deemed to mean the Origination Trustee, acting on
behalf of the Origination Trust and all beneficiaries thereof.
"Advance" means, (i) with respect to all Delinquent Leases
included in the 1996-B SUBI Portfolio during a Collection Period, an aggregate
advance required to be made with respect to such Delinquent Leases, the amount
of which shall equal the sum of all Monthly Lease Payments due but not received
during such Collection Period; provided, however, that for purposes of this
definition, the term "Delinquent Lease" shall have the meaning set forth in the
1996- B SUBI Supplement, except that it shall refer to 1996-B Leases that are
31 days or more past due, not 61 days or more past due; and (ii) with respect
to Leases that are included in the 1996-B SUBI Portfolio during a Collection
Period but which are not Delinquent Leases, an aggregate advance permitted (but
not required) to be made with respect to any Monthly Lease Payments under such
Leases that are one or more days, but less than 31 days, past due.
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"ALFI" and "ALFI LP" have the respective meanings set forth in
Recital A.
"Code" means the Internal Revenue Code of 1986, as amended.
"Current Liability" means, with respect to any Plan, the
present value of the accrued benefits under the Plan, as set forth in the most
recent audited consolidated financial statements of JM Family Enterprises, Inc.
and its subsidiaries.
"Eligible Servicer" means the Trust Agent or an entity that is
currently servicing a portfolio of automobile and/or light truck retail
installment lease contracts, that is legally qualified and has the capacity to
service the 1996-B Leases and that has demonstrated the ability to service a
portfolio of similar lease contracts professionally and competently in
accordance with high standards of skill and care.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute of similar
import, together with the regulations thereunder, in each case as in effect
from time to time. References to sections of ERISA shall be construed to refer
also to any successor sections.
"ERISA Affiliate" means each person (as defined in Section
3(9) of ERISA) which, together with the identified person, would be deemed to
be a member of the same "controlled group" within the meaning of Section
414(b), (c), (m) and (o) of the Code or Section 4001 of ERISA.
"First Bank" has the meaning set forth in Recital A.
"1996-B SUBI" has the meaning set forth in Recital C.
"1996-B SUBI Account" means any SUBI Account related to the
1996-B SUBI.
"1996-B Event of Default" means any of the acts, events or
occurrences set forth in Section 11.01.
"1996-B SUBI Portfolio" has the meaning set forth in Recital C.
"1996-B SUBI Supplement" has the meaning set forth in Recital
C.
"Nonrecoverable Advance" means any Advance that, in the
Servicer's reasonable judgment, may not be ultimately recoverable by the
Servicer from Matured Leased Vehicle Proceeds, Repossessed
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Vehicle Proceeds or other Liquidation Proceeds or Insurance Proceeds, any
Residual Value Insurance Policy or otherwise.
"Origination Trust" has the meaning set forth in the Preamble.
"Origination Trust Agreement" has the meaning set forth in
Recital A.
"Origination Trust Expenses" has the meaning set forth in
Section 9.02(e).
"Origination Trustee" has the meaning set forth in the
Preamble.
"Plan" means an "employee benefit plan," as such term is
defined in Section 3(3) of ERISA.
"Prospectus" means that certain prospectus dated October __,
1996 relating to the public offering of the Class A Certificates issued by the
Securitization Trust.
"Securitization Trust" means the trust created by the
Securitization Trust Agreement.
"Securitization Trust Agreement" has the meaning set forth in
Recital E.
"Securitization Trustee" has the meaning set forth in Recital
E.
"Seller" has the meaning set forth in Recital C.
"Servicer Letter of Credit" means a letter of credit, surety
bond or insurance policy under which demands for payment may be made to secure
timely remittance by the Servicer of monthly collections received in respect of
the 1996-B SUBI Assets to the 1996-B SUBI Collection Account.
"Servicer Reimbursement" has the meaning set forth in Section
9.02(g).
"Servicer's Certificate" has the meaning set forth in Section
10.01(b).
"Servicing Agreement" has the meaning set forth in Recital B.
"Supplement" has the meaning set forth in the Preamble.
"Trust Agent" has the meaning set forth in the Preamble.
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"Unfunded Current Liability" of any Plan means the amount, if
any, by which the present value of the accrued benefits under the Plan as of
the close of its most recent Plan year exceeds the value of the Plan's assets,
which value shall be determined as set forth in the most recent audited
consolidated financial statements of JM Family Enterprises, Inc. and its
subsidiaries.
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES OF SERVICER
The Servicer represents and warrants to the Securitization
Trustee as follows:
SECTION 7.01. ORGANIZATION AND STANDING.
The Servicer: (i) is a corporation validly organized and
existing and in good standing under the laws of the State of Florida; (ii) has
qualified to do business as a foreign corporation and is in good standing in
the State of Alabama and any other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the ability of the Servicer to carry out its
obligations as Servicer under the Servicing Agreement or this Supplement; (iii)
has full power, authority and legal right to own its property, to carry on its
business as presently conducted, and to enter into and perform its obligations
under the Servicing Agreement and this Supplement; and (iv) holds all requisite
licenses and permits, the absence of which would have a material adverse effect
on its ability to carry on its business as presently conducted.
SECTION 7.02. AUTHORIZATION, EXECUTION AND DELIVERY; NO
CONFLICTS.
The execution and delivery by the Servicer of this Supplement
are within the corporate power of the Servicer and have been duly authorized by
all necessary corporate action on the part of the Servicer. Neither the
execution and delivery of this Supplement, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof,
will conflict with or result in a breach of, or constitute a default (with
notice or passage of time or both) under any provision of any law, governmental
rule, regulation, judgment, decree or order binding on the Servicer or its
properties or the articles of incorporation or bylaws of the Servicer, or any
provision of any indenture, mortgage, contract or other instrument to which the
Servicer is a party or by which it is bound, or result in the acceleration of
any obligation under, or the creation or imposition of any Lien upon, any of its
property pursuant to the
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terms of any such indenture, mortgage, contract or other instrument.
SECTION 7.03. APPROVALS.
The Servicer has obtained or made all necessary licenses,
consents, approvals, waivers and notifications of creditors, lessors and other
nongovernmental persons, in each case in connection with the execution and
delivery of this Supplement and the consummation of all the transactions herein
contemplated, and the Servicer is not required to obtain the consent of any
other party or the consent, license, approval, waiver or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Supplement.
SECTION 7.04. ENFORCEABILITY.
This Supplement constitutes a legal, valid and binding
instrument enforceable against the Servicer in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, and other similar laws
relating to the enforcement of creditors' rights generally and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 7.05. LITIGATION.
Except as referred to in the Prospectus under "Risk Factors --
Legal Proceedings", there are no actions, suits or proceedings pending or, to
the knowledge of the Servicer, threatened against or affecting the Servicer or
any Affiliate thereof, before or by any court, administrative agency, arbitrator
or governmental body with respect to any of the transactions contemplated by
this Supplement, or which will, if determined adversely to the Servicer or any
such Affiliate, materially and adversely affect the Servicer's ability to
perform its obligations hereunder. The Servicer is not in default with respect
to any order of any court, administrative agency, arbitrator or governmental
body so as materially and adversely to affect the transactions contemplated by
this Supplement.
ARTICLE EIGHT
CREATION OF 1996-B SUBI
SECTION 8.01. INITIAL CREATION OF 1996-B SUBI PORTFOLIO.
(a) Pursuant to Section 4.02 of the Origination Trust
Agreement and Section 11.01 of the 1996-B SUBI Supplement, the Origination
Trustee has been directed to cause to be identified
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and allocated on the books and records of the Origination Trust an initial
separate portfolio of SUBI Assets consisting of Leases, related Leased Vehicles
and other associated Trust Assets, which Trust Assets shall meet the criteria
specified therein. Pursuant to Section 2.02(f) of the Servicing Agreement, the
Origination Trustee, on behalf of the Origination Trust, hereby directs that
the Servicer so identify and allocate such a separate portfolio of SUBI Assets
consisting of Leases, related Leased Vehicles and other associated Trust Assets
from among all those Leases, related Leased Vehicles and other associated Trust
Assets owned by the Origination Trustee, on behalf of the Origination Trust,
and currently accounted for as part of the Undivided Trust Interest.
(b) Pursuant to subsection (a) above and Section 2.02(f) of
the Servicing Agreement, the Servicer hereby identifies and allocates the
portfolio of Leases, related Leased Vehicles and other associated Trust Assets
(as described in clauses (i) through (ii) of the first sentence of Section
11.01(a) of the 1996-B SUBI Supplement) more particularly described on Exhibit
A hereto (which is in substantially the form of a Schedule of Leases and Leased
Vehicles), in order to create the initial 1996-B SUBI Portfolio.
(c) The Servicer hereby represents and warrants to the
Origination Trustee, on behalf of the Origination Trust, and to the
Securitization Trustee, on behalf of the Certificateholders, that (i) all 1996-B
Leases as of the Initial Cutoff Date were Eligible Leases as of the Initial
Cutoff Date, (ii) no adverse selection procedures were employed in selecting
such 1996-B Leases, and (iii) it is not aware of any bias in the selection of
such 1996-B Leases that would cause the delinquencies or losses therein to be
worse than those of other Leases.
SECTION 8.02. SUBSEQUENT ADDITIONS TO 1996-B SUBI PORTFOLIO.
(a) Pursuant to Section 11.02 of the 1996-B SUBI
Supplement, the Origination Trustee has been directed to cause to be identified
and allocated on the books and records of the Origination Trust on or before
each Transfer Date certain additional Eligible Leases, related Leased Vehicles
and other associated Trust Assets not then allocated, or reserved for allocation
to, any SUBI Portfolio, with an aggregate Discounted Principal Balance
determined as provided for in such Section. Pursuant to Section 2.02(f) of the
Servicing Agreement, the Origination Trustee, on behalf of the Origination
Trust, hereby directs that the Servicer identify such additional Eligible
Leases, related Leased Vehicles and other associated Trust Assets (as described
in clauses (i) and (ii) of the first sentence of Section 11.01(a) of the 1996-B
SUBI Supplement and as meet the other requirements set forth in Section 11.02
thereof) on
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or before each Transfer Date, and cause such Leases and Leased Vehicles to be
specifically identified on the revised Schedule of Leases and Leased Vehicles
to be delivered pursuant to Section 10.01(b) hereof. On each such Transfer
Date, but effective as of the related Subsequent Cutoff Date, such additional
Eligible Leases, Leased Vehicles and other associated Trust Assets shall be
added to the 1996-B SUBI Portfolio as additional 1996-B SUBI Assets.
(b) The Servicer shall give one Business Day's prior
notice to the Trustee of each Transfer Date. On each Transfer Date, prior to
the reallocation described in the last sentence of subparagraph (a), the
Servicer also shall provide to the Origination Trustee, on behalf of the
Origination Trust, an Officer's Certificate certifying that (i) all 1996-B
Leases added to the 1996-B SUBI Portfolio on that date were Eligible Leases as
of the relevant Subsequent Cutoff Date, (ii) no adverse selection procedures
were employed in selecting such 1996-B Leases, (iii) it is not aware of any
bias in the selection of such 1996-B Leases that would cause the delinquencies
or losses thereof to be worse than other Leases, other than the fact that such
1996-B Leases were selected from all Eligible Leases not then allocated to any
SUBI Portfolio or reserved for allocation to another SUBI Portfolio on a
"first-in, first-out" basis, based on the date of origination (other than as
provided in Section 11.08 of the 1996-B SUBI Supplement) and (iv) unless the
Origination Trustee receives a letter from each Rating Agency to the effect
that the use of different criteria would not result in the qualification,
reduction or withdrawal of its then current rating on any Rated Certificates,
after giving effect to such reallocation (A) each such 1996-B Lease will be
allocated to the 1996-B SUBI Portfolio based upon its Discounted Principal
Balance as of the relevant Subsequent Cutoff Date, (B) the weighted average
remaining term of all 1996-B Leases will be not greater than 38 months, and
(C) the weighted average Booked Residual Value of all 1996-B Leases, as a
percentage of the aggregate Outstanding Principal Balance of the 1996-B
Leases, will be not greater than 65%, based on the characteristics of each
1996-B Lease as of its date of origination.
(c) Except in the circumstances set forth in Section
11.02(e) of the 1996-B SUBI Supplement, on each Transfer Date, the Servicer
shall transfer from the 1996-B SUBI Collection Account to the Lease Funding
Account an amount equal to the
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aggregate Discounted Principal Balance as of the relevant Subsequent Cutoff
Date of the 1996-B Leases then being added to the 1996-B SUBI Portfolio
pursuant to Section 11.02(a) of the 1996-B SUBI Supplement.
(d) In the circumstances set forth in Section 11.02(e) of
the 1996-B SUBI Supplement, the Servicer shall transfer from the 1996-B SUBI
Collection Account to the 1996-B SUBI Lease Account the amounts specified in
such Section.
SECTION 8.03. SERVICER PAYMENT IN RESPECT OF CERTAIN
LEASES AND LEASED VEHICLES.
(a) The representation and warranty of the Servicer set
forth in Section 8.01(c), and the certifications of the Servicer pursuant to
Section 8.02(b)(i), with respect to each 1996-B Lease shall survive delivery of
the related Lease Documents to the Servicer and shall continue so long as such
1996-B Lease remains outstanding, or until the termination of the Securitization
Trust Agreement pursuant to Section 7.01 thereof, whichever occurs earlier. Upon
discovery by the Origination Trustee, the Securitization Trustee or the Servicer
that any such representation or warranty was incorrect as of the time effective
and materially and adversely affects such 1996-B Lease, the party discovering
such incorrectness shall give prompt written notice to the others. Within 60
days of its discovery of such incorrectness or notice to such effect to the
Servicer, the Servicer shall cure in all material respects the circumstances or
condition in respect of which the representation or warranty was incorrect as of
the time effective. If the Servicer is unable or unwilling to do so timely, it
shall, as the sole remedy for such breach, promptly (i) deposit (or cause to be
deposited) into the 1996-B SUBI Collection Account an amount equal to the then
Discounted Principal Balance of such Lease as of the Deposit Date related to the
Collection Period in which the 60-day cure period ended, plus an amount equal to
the imputed interest, or lease charge, portion of any Monthly Lease Payments
with respect thereto at the related Lease Rate that was delinquent as of that
Collection Period, (ii) reallocate such Lease and the related Leased Vehicle
from the 1996-B SUBI Portfolio to the UTI Portfolio, and (iii) indemnify, defend
and hold harmless the holders of any 1996-B SUBI Certificate (including without
limitation the Securitization Trustee on behalf of the Securitization Trust and
the Certificateholders) and any subsequent servicer (if other than the current
Servicer) from and against, any and all loss or liability with respect to or
resulting from any such Lease or Leased Vehicle (including without limitation
the reasonable fees and expenses of counsel). Notwithstanding the foregoing, if
any reallocation described in clause (ii) would cause the Seller Interest to be
equal to or less than zero, the Servicer also shall deposit promptly into the
1996-B SUBI Collection Account an amount so that the Seller
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Interest will not be reduced to less than zero, and the reallocation will not
be made until such deposit has been made.
(b) In the event that the Servicer receives funds from a
Dealer required pursuant to such Dealer's obligation under a Dealer Agreement
with the Servicer to repurchase a misrepresented Lease or Leased Vehicle
included in the 1996-B SUBI Portfolio, the Servicer shall, within two Business
Days of receipt thereof, deposit such funds into the 1996-B SUBI Collection
Account, which deposit shall satisfy the Servicer's obligations pursuant to
Section 8.03(a)(i), and return to the repurchasing Dealer the Certificate of
Title and Lease with respect to such Leased Vehicle.
(c) The obligations of the Servicer pursuant to this
Section 8.03 shall survive any termination of the Servicer with respect to the
1996-B SUBI Portfolio under this Supplement or the Servicing Agreement.
SECTION 8.04. FILINGS.
The Servicer will undertake all other and future actions and
activities as may be reasonably necessary to perfect (or evidence) and confirm
the foregoing allocations of Trust Assets to the 1996-B SUBI Portfolio,
including without limitation filing or causing to be filed UCC financing
statements and executing and delivering all related filings, documents or
writings as may be reasonably necessary hereunder or under any other
Securitization Trust Documents (including the Backup Security Agreement),
whether on its own behalf or pursuant to the power of attorney granted by the
Grantor pursuant to Section 11.04 of the 1996-B SUBI Supplement; provided,
however, that in no event shall the Servicer be required to take any action to
perfect a security interest that may be held by the Securitization Trustee in
any 1996-B Leased Vehicle.
ARTICLE NINE
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING OF LEASES
IN 1996-B SUBI PORTFOLIO
SECTION 9.01. SERVICER BOUND BY SERVICING AGREEMENT.
(a) Except as otherwise specifically provided herein: (i) the
Servicer shall continue to be bound by all provisions of the Servicing Agreement
with respect to the Leases, Leased Vehicles and other associated Trust Assets in
the 1996-B SUBI Portfolio, including without limitation the provisions of
Article Two thereof relating to the administration and servicing of Leases; and
(ii) the provisions set forth herein shall operate either as additions to or
modifications of the already-extant obligations of the Servicer under the
Servicing Agreement, as
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the context may require. In the event of any conflict between the provisions of
this Supplement and the Servicing Agreement with respect to the 1996-B SUBI,
the provisions of this Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations
with respect to the servicing of the 1996-B SUBI Portfolio under this Supplement
(including without limitation pursuant to Article Two thereof), general
references in the Servicing Agreement to: (i) a SUBI Account shall be deemed to
refer more specifically to the 1996-B SUBI Account; (ii) a SUBI Asset shall be
deemed to refer more specifically to a 1996-B SUBI Asset; (iii) an appropriate
or applicable SUBI Collection Account shall be deemed to refer more specifically
to the 1996-B SUBI Collection Account; (iv) an appropriate or applicable SUBI
Lease Account shall be deemed to refer more specifically to a 1996-B SUBI Lease
Account; (v) a SUBI Portfolio shall be deemed to refer more specifically to the
1996-B SUBI Portfolio; (vi) a SUBI Servicing Agreement Supplement shall be
deemed to refer more specifically to this Supplement; and (vii) a SUBI
Supplement shall be deemed to refer more specifically to the 1996-B SUBI
Supplement.
(c) Coincident with the execution and delivery of this
Supplement, the Servicer shall furnish the Securitization Trustee, on behalf of
the 1996-B Securitization Trust, with an Officer's Certificate listing the
officers of the Servicer currently involved in, or responsible for, the
administration and servicing of the Leases in the 1996-B SUBI Portfolio, which
list shall from time to time be updated by the Servicer.
SECTION 9.02. COLLECTION OF MONTHLY LEASE PAYMENTS AND
REMITTANCES; APPLICATION OF PROCEEDS;
ACCOUNTS
(a) With reference to Section 2.02(b) of the Servicing
Agreement:
(i) the Servicer shall transfer into the 1996-B SUBI
Collection Account any Extension Fee that it may receive in connection with the
extension of a 1996-B Lease;
(ii) except as provided in clause (iii) below, the
extended Maturity Date of any 1996-B Lease may not occur later than the last
day of the Collection Period related to the Final Scheduled Distribution Date;
and
(iii) if the Servicer does extend the Maturity Date
of a Lease included in the 1996-B SUBI Portfolio by more than a total of five
times or by more than five months in the aggregate as described in Section
2.02(b) of the Servicing Agreement, or extends the Maturity Date so that the
extended
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Maturity Date will occur later than the last day of the Collection Period
relating to the Final Scheduled Maturity Date, then, as the sole remedy
therefor, the Servicer shall, on the Deposit Date related to the Collection
Period in which such extension was granted or on the Deposit Date relating to
the Collection Period in which the Servicer discovers or is notified that an
improper extension was granted, (y) deposit into the 1996-B SUBI Collection
Account an amount equal to the then Discounted Principal Balance of such Lease
plus an amount equal to the interest, or lease charge, portion of any Monthly
Lease Payments with respect thereto at the related Lease Rate that were
delinquent as of the end of that Collection Period, and (z) reallocate such
Lease and the related Leased Vehicle from the 1996-B SUBI Portfolio to the UTI
Portfolio. The obligations of the Servicer pursuant to this Section 9.02(a)
shall survive any termination of the Servicer's obligations with respect to the
1996-B SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) With reference to Section 2.02(d) of the Servicing
Agreement, the Servicer shall treat all Repossessed Vehicle Proceeds and Matured
Leased Vehicle Proceeds in the manner provided for other Liquidation Proceeds;
provided, however, as set forth in Section 9.07, that the Servicer may be
reimbursed for related unreimbursed Repossessed Vehicle Expenses, Matured Leased
Vehicle Expenses, other Liquidation Expenses and Insurance Expenses as provided
in subsection (g).
(c) With reference to Section 2.04 of the Servicing
Agreement, the Servicer shall deposit into the 1996-B SUBI Collection Account
on or before each Deposit Date each Security Deposit that became Liquidation
Proceeds during the related Collection Period.
(d) The Servicer, on behalf of the Origination Trustee,
shall establish and maintain the 1996-B SUBI Collection Account in the
circumstances set forth in Section 12.01(a) of the 1996-B SUBI Supplement. The
Servicer, on behalf of the Origination Trustee, shall establish and maintain the
Residual Value Surplus Account in the circumstances set forth in Section
12.03(a) of the 1996-B SUBI Supplement. The Servicer shall establish and
maintain the Distribution Account in the circumstances set forth in Section 3.01
of the Securitization Trust Agreement. The Servicer shall establish and maintain
the Reserve Fund in the circumstances set forth in Section 3.04(a) of the
Securitization Trust Agreement.
(e) On each Determination Date the Servicer shall make the
calculations necessary to allow the distribution by the Origination Trustee to
holders of the 1996-B SUBI Certificates on the related Distribution Date in
accordance with Section 12.01(c) of the 1996-B SUBI Supplement. In connection
therewith, the
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Servicer shall determine the amount of Origination Trust expenses and
liabilities ("Origination Trust Expenses") incurred or suffered during the
preceding Collection Period and shall calculate the allocations of such
Origination Trust Expenses among the various Portfolios, including the 1996-B
SUBI Portfolio, in good faith and so as not to disproportionately affect any
Portfolio, generally as provided for in Section 7.01(c) of the Trust Agreement.
On each Determination Date, the Servicer also shall make the calculations
necessary to allow the distributions to Certificateholders and others on the
related Distribution Date in accordance with Section 3.03 of the Securitization
Trust Agreement.
(f) On each Deposit Date, the Servicer shall (i) cause the
transfer from the 1996-B SUBI Collection Account to the Residual Value Surplus
Account as provided in Section 12.01(b) of the 1996-B SUBI Supplement or make
the transfer from the Residual Value Surplus Account to the 1996-B SUBI
Collection Account as provided in Section 12.03(b) of the 1996-B SUBI
Supplement, as appropriate, and (ii) cause the transfers from the 1996-B SUBI
Collection Account in respect of the 1996-B SUBI Certificates to the
Distribution Account at the direction of the Seller, as provided in Section
3.02(a) of the Securitization Trust Agreement and Section 12.01(c) of the 1996-B
SUBI Supplement. On each Distribution Date, the Servicer shall make the
distributions from the Distribution Account and the Reserve Fund in respect of
the Certificates, as provided in Section 3.03 of the Securitization Trust
Agreement.
(g) To the extent that during any Collection Period the
Servicer has incurred Matured Leased Vehicle Expenses as would result in Net
Matured Leased Vehicle Proceeds (for purposes hereof, calculated without netting
any Matured Leased Vehicle Expenses as are reimbursed pursuant to subsection
(b)), being less than the sum of the Booked Residual Values of all Matured
Vehicles sold or otherwise disposed of from Matured Leased Vehicle Inventory
during the related Collection period, then on the related Deposit Date, (w) the
Servicer shall provide to the Origination Trustee and the Securitization Trustee
an Officer's Certificate setting forth the basis for its determination of any
such amount, and (x) the Origination Trustee shall promptly transfer the amount
of such Matured Leased Vehicle Expenses for the related Collection Period from
the Residual Value Surplus Account to the Lease Funding Account (but only to the
extent as would result in the Net Matured Leased Vehicle Proceeds (but instead
calculated fully in accordance with the definition thereof) being no more than
the sum of the Booked Residual Values of all Matured Vehicles sold or otherwise
disposed of from Matured Leased Vehicle Inventory during that Collection
Period). To the extent that during any Collection Period (i) the Servicer has
incurred Matured Leased Vehicle Expenses that may not be reimbursed from the
Residual Value Surplus Account as described
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above, whether because Net Matured Lease Vehicle Proceeds (again calculated
fully in accordance with the definition thereof) would be more than the sum of
the Booked Residual Values of all Matured Vehicles sold or otherwise disposed of
from Matured Leased Vehicle Inventory during that Collection Period or because
there are insufficient amounts available on deposit in the Residual Value
Surplus Account to reimburse the Servicer for any Matured Leased Vehicle
Expenses as would otherwise be reimbursable from the Residual Value Surplus
Account as provided above; (ii) the Servicer has incurred any Repossessed
Vehicle Expenses or other Liquidation Expenses or Insurance Expenses; (iii) any
Monthly Lease Payments arising from a Lease allocated to the 1996-B SUBI
Portfolio are received by the Origination Trustee or the Servicer with respect
to any prior Collection Period as to which the Servicer has outstanding an
unreimbursed Advance; or (iv) any amount of unreimbursed Advances are reasonably
determined by the Servicer to be Nonrecoverable Advances, then, on the related
Deposit Date, (y) the Servicer shall provide to the Origination Trustee and the
Securitization Trustee an Officer's Certificate setting forth the basis for its
determination of any such amount and (z) the Origination Trustee shall promptly
transfer an amount equal to the aggregate of such amounts from the 1996-B SUBI
Collection Account to the Lease Funding Account. Thereafter, the Origination
Trustee shall remit to the Servicer from the Lease Funding Account the total of
such amounts set forth in the first sentence above and clauses (i) through (iv)
of the second sentence above, without interest (the "Servicer Reimbursement").
In lieu of causing the Origination Trustee to transfer to the Lease Funding
Account and then remit to the Servicer all or part of any such Servicer
Reimbursement, upon providing an Officer's Certificate, the Servicer may deduct
from deposits otherwise to be made into the 1996-B SUBI Collection Account or
Residual Value Surplus Account, as applicable, an amount up to but not exceeding
the total of such amounts as are due and owing to the Servicer.
(h) The Servicer shall account to the Origination Trustee
and the Securitization Trustee with respect to the 1996-B SUBI Portfolio
separately from any other Portfolio.
(i) The Servicer shall direct the Origination Trustee's or
the Securitization Trustee's, as applicable, investments from time to time of
funds in the 1996-B SUBI Accounts, the Distribution Account and the Reserve
Fund, all as provided for in (and subject to the limitations of) Section 7.01(d)
of the Trust Agreement, Sections 11.02(d), 12.01, 12.02 and 12.03 of the 1996-B
SUBI Supplement, and Sections 3.01(b) and 3.04(a) of the Securitization Trust
Agreement. The maximum permissible maturities of any such investments pursuant
to this clause on any date shall be not later than the Business Day immediately
preceding the Deposit Date (with regard
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to investment of funds in 1996-B SUBI Accounts) or the Business Day immediately
preceding the Distribution Date (with regard to investment of funds in the
Distribution Account and the Reserve Fund) next succeeding the date of such
investment, except for (i) investments on which the Origination Trustee or
Securitization Trustee, respectively, is the obligor (including repurchase
agreements on which it, in its commercial capacity, is liable as principal),
which may mature on the Deposit Date or Distribution Date, respectively, and
(ii) investments during the Revolving Period of Principal Collections on deposit
in the 1996-B SUBI Collection Account, which may mature on such dates as
specified by the Origination Trustee at the Servicer's direction so as to
maintain the availability of sufficient cash to make the payments described in
Sections 8.02(c) and (d) hereof.
(j) In the event the Servicer provides to the UTI Holder,
the Origination Trustee and the Securitization Trustee a letter from each Rating
Agency to the effect that the utilization by the Servicer of an alternative
remittance schedule with respect to collections arising out of the 1996-B SUBI
Portfolio to be deposited in the 1996-B SUBI Collection Account pursuant to
Section 2.02(c) or (d) of the Servicing Agreement (including but not limited to
the use of an alternative remittance schedule pursuant to which the obligations
of the Servicer to make such remittances are secured by a Servicer Letter of
Credit satisfactory to each such Rating Agency) will not result in a
qualification, downgrading or withdrawal of the then-current rating assigned to
the Rated Certificates by such Rating Agency, (i) this Supplement may be so
modified without the consent of any Certificateholders pursuant to Section 12.02
of this Agreement and 9.01 of the Securitization Trust Agreement and (ii) the
Servicer may remit such collections to the 1996-B SUBI Collection Account in
accordance with that alternative remittance schedule.
(k) The Servicer may make remittances to the Distribution
Account net of certain other amounts, as and to the extent set forth in Section
3.05 of the Securitization Trust Agreement.
(l) The parties hereto acknowledge that the Origination
Trustee, on behalf of the Origination Trust, has made a complete transfer to
the Securitization Trustee of the initial proceeds of the 99.8% 1996-B SUBI
Certificate contained in the Distribution Account and the Reserve Fund and,
except as provided in this Supplement, the 1996-B SUBI Supplement and the
Securitization Trust Agreement, neither the Origination Trustee nor the
Servicer has any right to direct such funds to a third party or to receive such
funds.
(m) In the event of a sale, disposition or other
liquidation of the 99.8% 1996-B SUBI Certificate and the other property of the
Securitization Trust pursuant to Section 8.02 of the Securitization Trust
Agreement, the Servicer shall allocate
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the net proceeds thereof between Principal Collections and Interest Collections
as set forth in Section 8.01(b) of the Securitization Trust Agreement.
SECTION 9.03. RECORDS.
Upon the occurrence and during the continuance of a 1996-B
Event of Default hereunder, the Servicer shall, on demand of the Origination
Trustee, on behalf of the Origination Trust (either at the request of the
Securitization Trustee or, as provided in Section 11.01(b) hereof, upon demand
of Investor Certificateholders representing not less than 51% of the aggregate
Percentage Interest), deliver to the Origination Trustee all such data,
operating software and appropriate documentation necessary for the servicing of
the 1996-B Leases, including but not limited to the related Lease Documents and
Title Documents, all moneys collected by it and required to be deposited in any
1996-B SUBI Account on behalf of the Origination Trust, or in the Distribution
Account or the Reserve Fund on behalf of the Securitization Trust, all Security
Deposits with respect to 1996-B Leases, and any 1996-B Leased Vehicle in the
possession of the Servicer that has been repossessed or is part of Matured
Leased Vehicle Inventory and in either case has not yet been sold or otherwise
disposed of pursuant to Section 2.06 of the Servicing Agreement. Without
limitation of the foregoing, if the rights of the Servicer with respect to the
1996-B SUBI Portfolio shall have been terminated in accordance with Section
4.01(b) of the Servicing Agreement and Section 11.01(b) hereof or if this
Supplement shall have been terminated pursuant to Section 12.01 hereof, the
Servicer shall, upon demand of the Origination Trustee, on behalf of the
Origination Trust (either at the request of the Securitization Trustee, the
Investor Certificateholders representing not less than 51% of the aggregate
Percentage Interest, or otherwise), deliver to the Origination Trustee all such
data, operating software and appropriate documentation necessary for the
servicing of the 1996-B Leases and all moneys collected by it and required to be
deposited, as appropriate, in any 1996-B SUBI Account or the Distribution
Account or the Reserve Fund. In addition to delivering such data, operating
software and appropriate documentation and moneys, the Servicer shall use its
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the 1996-B Leases to the party that will be assuming
responsibility for such servicing, including, without limitation, directing
Obligors to remit payments in respect of those Leases to an account or address
designated by the Origination Trustee or such new servicer.
SECTION 9.04. ADVANCES.
(a) On or prior to each Deposit Date, the Servicer shall
make any Advance required by clause (i) of the definition
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thereof, and may make any Advance permitted by clause (ii) of the definition
thereof which the Servicer chooses to make, into the 1996-B SUBI Collection
Account.
(b) Notwithstanding any other provision of this
Supplement, the Servicer shall not be obligated to make any Advance in respect
of any 1996-B Lease if the Servicer shall have reasonably determined that any
such Advance, if made, would constitute a Nonrecoverable Advance. Any such
determination shall be evidenced by an Officer's Certificate of the Servicer
furnished to the UTI Holder, the Origination Trustee and the Securitization
Trustee setting out the basis for such determination, which determination shall
be conclusive and binding absent manifest error.
SECTION 9.05. PAYMENT OF CERTAIN FEES AND EXPENSES;
NO OFFSET.
(a) As part of its obligations hereunder, to the extent
that cash flows arising from the 1996-B SUBI Portfolio, as set forth in Section
3.03(b) of the Securitization Trust Agreement, are insufficient to provide for
the payment of all fees and expenses due to the Origination Trustee or the
Securitization Trustee as Capped Origination Trust Administrative Expenses,
Capped Securitization Trust Administrative Expenses or Uncapped Administrative
Expenses, the Servicer shall advance an amount equal to such excess fees and
expenses as they become payable from time to time and agrees to indemnify the
Origination Trustee and the Securitization Trustee and their respective agents
for such amounts. The Servicer shall be entitled to reimbursement of such
advances as set forth in Section 3.03(b) of the Securitization Trust Agreement.
The obligations of the Servicer pursuant to this Section 9.05(a) shall survive
any termination of the Servicer's rights and obligations with respect to the
1996-B SUBI Portfolio under this Supplement or the Servicing Agreement.
(b) Prior to the termination of the Servicer's rights and
obligations with respect to the 1996-B SUBI Portfolio and thereafter if such
termination results from a 1996-B Event of Default, the obligations of the
Servicer with respect to the 1996-B SUBI Portfolio shall not be subject to any
defense, counterclaim or right of offset that the Servicer has or may have
against any UTI Holder, the Origination Trustee on behalf of the Origination
Trust, any Special Purpose Affiliate or the Securitization Trustee, whether in
respect of this Supplement, the 1996-B SUBI Supplement, the Servicing Agreement,
any
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Securitization Trust Document, any 1996-B Lease, any related Lease Document,
any 1996-B Leased Vehicle or otherwise.
SECTION 9.06. SERVICING COMPENSATION.
(a) Notwithstanding anything to the contrary in Section
2.05 of the Servicing Agreement, (a) the Servicing Rate Portion with regard to
the 1996-B SUBI Portfolio shall be calculated and (unless waived in accordance
with Section 9.06(b) hereof) paid on each Distribution Date based upon the
Aggregate Net Investment Value as of the first day of the related Collection
Period (or, in the case of the first Distribution Date, as of the Initial Cutoff
Date), rather than based upon the allocable portion of the Pool Balance, (b) the
portion of the Servicing Fee allocable to the 1996-B SUBI Portfolio shall be
paid out of cash flows arising from the 1996-B SUBI Portfolio as and to the
extent set forth in Section 12.01(c) of the 1996-B SUBI Supplement and the
definition of the term "Collections" set forth in Section 10.01 thereof, (c) no
Extension Fee with respect to a Lease included in the 1996-B SUBI Portfolio
shall constitute part of the Servicing Fee, and (d) the Servicer may be
reimbursed for advancing certain Administrative Expenses as provided in Section
9.05(a). Further, as additional servicing compensation with regard to the 1996-B
SUBI Portfolio, the Servicer also shall receive income on investment of funds in
the Reserve Fund if and to the extent that the balance therein is greater than
the Reserve Fund Cash Requirement (and so long as the ERISA Compliance Test is
satisfied) as and to the extent provided in Section 3.04(b) of the
Securitization Trust Agreement.
(b) So long as World Omni Financial Corp. is the Servicer,
the Servicer may, by notice to the Origination Trustee and the Securitization
Trustee on or prior to any Determination Date, waive its Servicing Fee with
respect to the related Collection Period, so long as the Servicer believes that
sufficient collections will be available from Interest Collections on one or
more future Distribution Dates (other than from amounts on deposit in the
Reserve Fund) to pay such waived Servicing Fee, without interest. If the
Servicer so waives such Servicing Fee, the Servicing Fee with respect to such
Collection Period shall be deemed to be zero for all purposes, provided,
however, that for purposes of clause (c) of the definition of "Interest
Collections" in the 1996-B SUBI Supplement and Section 3.03 of the
Securitization Trust Agreement, any such waived Servicing Fee thereafter shall
be treated as an unpaid Servicing Fee with respect to a prior Collection Period
(unless the Servicer continues to waive such Servicing Fee).
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SECTION 9.07. REPOSSESSION AND SALE OF LEASED VEHICLES.
Notwithstanding Section 2.06 of the Servicing Agreement, the
Servicer need not deduct from Repossessed Vehicle Proceeds, Matured Leased
Vehicle Proceeds or other Liquidation Proceeds or Insurance Proceeds with
respect to any particular 1996-B Leased Vehicle all related unreimbursed
Repossessed Vehicle Expenses, Matured Leased Vehicle Expenses or other
Liquidation Expenses or Insurance Expenses prior to transferring such funds out
of its operating account. Such expenses may instead be reimbursed as provided
in Section 9.02(g).
SECTION 9.08. INDEMNIFICATION BY SERVICER.
The Servicer agrees to indemnify, defend and hold harmless the
Securitization Trustee and its agents for any and all liabilities, losses,
damages and expenses (including without limitation reasonable fees and expenses
of counsel) that may be incurred by the Securitization Trustee or its agents as
a result of any act or omission by the Servicer in connection with its
maintenance and custody of the Lease Documents, Title Documents, and Lease
Records with respect to 1996-B Leases and 1996-B Leased Vehicles, the servicing
of the 1996-B Leases, the Servicer's undertakings in clause (e) of Section 2.07
of the Servicing Agreement or any other activity undertaken or omitted by the
Servicer with respect to any Trust Asset included in the 1996-B SUBI Portfolio.
The obligations set forth in this Section 9.08 shall survive the termination of
this Supplement or the resignation or removal of the Servicer (generally or
with respect to the 1996-B SUBI Portfolio) or the Securitization Trustee.
SECTION 9.09. THIRD PARTY CLAIMS.
The Servicer shall immediately notify the Securitization
Trustee and any other holder of any 1996-B SUBI Certificate upon its learning
that a claim of whatever kind that would have a material adverse impact on any
UTI Holder, the Seller, the Origination Trustee, the Origination Trust, the
Securitization Trust, the Securitization Trustee, any 1996-B SUBI Asset or the
Servicer is being made by a third party with respect to any Lease or Leased
Vehicle (whether or not included in the 1996-B SUBI Portfolio) or the servicing
thereof or with respect to any other Trust Asset (whether or not constituting a
1996-B SUBI Asset).
SECTION 9.10. INSURANCE POLICIES.
So long as any 1996-B SUBI Certificates are outstanding, the
Servicer will maintain and pay when due all premiums with respect to, and the
Servicer may not terminate
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or cause the termination of the following, all premiums with respect to which
shall constitute Administrative Expenses: (i) each Contingent and Excess
Liability Insurance Policy unless (A) a replacement insurance policy or
policies is obtained providing coverage against third party claims that may be
raised against the Origination Trustee, on behalf of the Origination Trust,
with respect to any Leased Vehicle included in the 1996-B SUBI Portfolio in an
amount at least equal to $10 million per claim, not subject, to this extent, to
any annual or aggregate cap (which policy or policies may be a blanket
insurance policy or policies covering the Servicer and one or more of its
Affiliates), and (B) either each Rating Agency has delivered a letter to the
Securitization Trustee to the effect that the obtaining of any such replacement
insurance policy or policies, in and of itself, will not cause its then-current
rating of any of the Rated Certificates to be qualified, reduced or withdrawn,
or alternatively (with respect to Moody's only, so long as Xxxxx'x is a Rating
Agency) such replacement policy is issued by a carrier with a claims paying
ability rating of A-2 or better; or (ii) the Residual Value Insurance Policy,
unless the 1996-B Leases may properly be treated as finance leases for purposes
of generally accepted accounting principles, consistently applied, by virtue of
some reason other than maintenance of that policy, and the Servicer has
provided to the Trustee and the Origination Trustee an Officer's Certificate to
that effect, describing such reasons which shall be in accordance with GAAP. On
or before December 31 of each year, the Servicer shall provide to the
Origination Trustee one or more insurance certificates certifying that each of
the particular policies it is required to maintain pursuant to this Section
9.10 remains in full force and effect. The obligations of the Servicer
pursuant to this Section 9.10 shall survive any termination of the Servicer's
obligations with respect to the 1996-B SUBI Portfolio under this Supplement or
the Servicing Agreement.
SECTION 9.11. SERVICER NOT TO RESIGN; ASSIGNMENT.
(a) If the Servicer resigns in the circumstances
contemplated by Section 2.10(a) of the Servicing Agreement, in addition to the
requirements set forth therein, the Opinion of Counsel required thereby also
shall be reasonably satisfactory to the Securitization Trustee. Any servicing
agreement entered into by a new servicer pursuant to that Section 2.10(a) also
must contain substantially the same provisions as this Supplement. The
Securitization Trustee shall not unreasonably fail to consent to a servicing
agreement with a new servicer that proposes to enter into a servicing agreement
that meets the standards required by Section 2.10 of the Servicing Agreement and
this Supplement. No such resignation shall affect the obligation of the
Servicer to remit moneys to the 1996-B SUBI Collection Account (in lieu of
unrecoverable insurance proceeds) as set forth in Section 2.11 of the Servicing
Agreement and Section
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9.11 hereof, or the obligations of the Servicer pursuant to Section 8.03(c)
hereof, Section 2.07(g) of the Servicing Agreement or Section 9.07 hereof,
Section 9.02(a) hereof (as to any 1996-B Lease the Maturity Date of which has
been extended beyond the specified limit by the Servicer), Section 9.05(a)
hereof, or Section 9.09 hereof; no successor Servicer shall be required to
undertake any of the foregoing, other than the obligation set forth in Section
9.05(a) (which shall remain a joint and several obligation of the initial
Servicer and any successor Servicer). The Origination Trustee shall give prompt
notice to each Rating Agency of any such resignation of the Servicer, and the
Origination Trustee and Securitization Trustee must obtain from each Rating
Agency a letter approving each substitute servicer.
(b) The Servicer may not assign this Supplement or any of
its rights, powers, duties or obligations hereunder except in connection with an
assignment of the Servicing Agreement as permitted thereby.
(c) Except as provided in paragraphs (a) and (b) above,
the duties and obligations of the Servicer under this Supplement shall continue
until they shall have been terminated as provided in Section 12.01 hereof or in
the Servicing Agreement and shall survive the exercise by the Origination
Trustee, on behalf of the Origination Trust, of any right or remedy under this
Supplement or the Servicing Agreement or the enforcement by the Origination
Trustee, on behalf of the Origination Trust, of any provision of the Origination
Trust Documents.
SECTION 9.12. OBLIGOR INSURANCE COVERAGE IN RESPECT OF
LEASED VEHICLES.
With reference to Section 2.11 of the Servicing Agreement,
except as provided in Section 9.02 hereof, the required deposits of insurance
proceeds with respect to 1996-B Leased Vehicles into the 1996-B SUBI Collection
Account shall be made within two Business Days after receipt thereof.
SECTION 9.13. CORPORATE EXISTENCE; STATUS; MERGER.
(a) With reference to Section 2.13(a) of the Servicing
Agreement, the Servicer also will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of, or to permit the Servicer to perform its obligations under,
this Supplement, the Servicing Agreement and the Securitization Trust
Agreement.
(b) With reference to Section 2.13(b) of the Servicing
Agreement, whenever the consent of the Origination Trustee is required, so also
shall the consent of the Securitization Trustee
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be required, and whenever a successor to the Servicer by merger or consolidation
is required to execute and deliver to the Origination Trustee an agreement in
form and substance reasonably satisfactory to the Origination Trustee as to the
assumption by the successor of the Servicer's obligations under the Servicing
Agreement and the other Origination Trust Documents, such agreement also must be
reasonably satisfactory to the Securitization Trustee and must contain a similar
assumption of the Servicer's obligations under this Supplement.
SECTION 9.14. MOBILE LEASED PREMISES.
The Servicer as "Lessor," hereby leases to the Seller and its
general partner, World Omni Lease Securitization, Inc., each as "Lessee," and
Lessee hereby hires and takes as tenant, for a rental of $100 per year for
Lessee, certain premises located at 0000 Xxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxx of
the minimum dimensions of five (5) feet by eleven (11) feet and surrounded on
at least three (3) sides by walls or moveable partitions (the "Mobile Leased
Premises"), to be used as the Alabama office of Lessee. The lease of the Mobile
Leased Premises to the Lessee pursuant to this Section 9.14 shall continue
throughout the term of this Supplement, except in the case of a change in the
Servicer's principal Alabama offices, in which case the lease of functionally
equivalent premises in the new location from time to time shall continue
throughout such term.
ARTICLE TEN
STATEMENTS AND REPORTS
SECTION 10.01. REPORTING BY THE SERVICER.
(a) The Servicer shall deliver to the Securitization Trustee
all reports and other documents required to be delivered to the Origination
Trustee pursuant to the Servicing Agreement (including Section 3.01 thereof)
concurrently with their delivery to the Origination Trustee.
(b) On or prior to each Determination Date and each Transfer
Date, the Servicer shall cause to be delivered to the Origination Trustee and
the Securitization Trustee a revised Schedule of Leases and Leased Vehicles,
containing data as of the last day of the prior Collection Period (in the case
of each Determination Date) or as of the related Subsequent Cutoff Date (in the
case of each Transfer Date), and which shall contain in addition to the data
required by the definition of the term "Schedule of Leases and Leased Vehicles"
an identification of all Leases and Leased Vehicles that are 1996-B Leases and
1996-B Leased Vehicles, the Discounted Principal Balance of each 1996-B Lease
and the related Cutoff Date for each 1996-B Lease, and on or prior to each
Determination Date, shall cause to be
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delivered to the Origination Trustee, the Securitization Trustee and each
Rating Agency a certificate in respect of such Collection Period (the
"Servicer's Certificate") substantially in the form attached as Exhibit B (and
setting forth such additional information as requested by each Rating Agency
from time to time which information the Servicer is able to reasonably
provide), containing all information necessary to make the distributions
required by Sections 9.02(f) hereof, 12.01(c) of the 1996-B SUBI Supplement and
3.03 of the Securitization Trust Agreement in respect of the Collection Period
immediately preceding such Determination Date. On or prior to each Deposit
Date, the Servicer shall cause to be delivered to the Securitization Trustee
the statement required by Section 3.06(a) of the Securitization Trust
Agreement. Within the time required by Section 3.06(b) of the Securitization
Trust Agreement, the Servicer shall cause to be delivered to the Securitization
Trustee the statements required by that Section. Any Certificate Owner may
obtain a copy of a Servicer's Certificate upon written request.
SECTION 10.02. ANNUAL ACCOUNTANTS' REPORTS.
The annual report of the Independent Accountants of the
Servicer required by Section 3.02 of the Servicing Agreement, to the extent
that it refers to the Servicing Agreement, shall also specifically refer to the
Servicing Agreement as supplemented by this Supplement, and shall additionally
be delivered to the Securitization Trustee and each Rating Agency.
SECTION 10.03. OTHER CERTIFICATES AND NOTICES FROM SERVICER.
(a) The annual Officer's Certificate of the Servicer
required by Section 3.03 of the Servicing Agreement, to the extent that it
refers to the Servicing Agreement, shall also specifically refer to the
Servicing Agreement as supplemented by this Supplement, and shall additionally
be delivered to the Securitization Trustee and each Rating Agency.
(b) The Servicer shall deliver to the Securitization
Trustee, the Origination Trustee and each Rating Agency, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, an Officer's Certificate specifying the nature and status of any
event which with the giving of notice or lapse of time, or both, would become a
1996-B Event of Default.
(c) On or prior to each Determination Date, the Servicer
shall cause to be delivered to the Securitization Trustee and each Rating
Agency an Officer's Certificate stating that neither the Trust nor any of its
ERISA Affiliates: (i) maintains a Plan, which, as of its last valuation date,
has
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Unfunded Current Liability; (ii) anticipates that the value of the assets of
any Plan it maintains would not be sufficient to cover any Current Liability;
or (iii) is contemplating benefit improvements with respect to any Plan then
maintained by any such entity or the establishment of any new Plan, either of
which would cause any such entity to maintain a Plan with Unfunded Current
Liability.
SECTION 10.04. TAX RETURNS.
As contemplated by Section 6.12 of the Securitization Trust
Agreement, the Servicer shall direct the Securitization Trustee to prepare or
cause to be prepared, on behalf of the Seller, any required federal tax
information returns (in a manner consistent with the treatment of the Investor
Certificates as indebtedness). Also as contemplated by Section 6.12 of the
Securitization Trust Agreement, the Servicer shall prepare or cause to be
prepared any federal and state tax returns that may be required with respect to
the Securitization Trust or the assets thereof and shall deliver any such
returns to the Securitization Trustee for signature at least five days prior to
the date such returns are required by law to be filed.
ARTICLE ELEVEN
DEFAULT
SECTION 11.01. EVENTS OF DEFAULT; TERMINATION OF SERVICER AS
TO 1996-B SUBI PORTFOLIO.
(a) Any of the following acts or occurrences shall
constitute a 1996-B Event of Default under the Servicing Agreement, as
supplemented by this Supplement:
(i) The Servicer shall have failed to deliver to the
Origination Trustee for distribution to or for the account of the
holders of 1996-B SUBI Certificates or to the Securitization Trustee
for distribution to the Investor Certificateholders any amounts
required to be so distributed pursuant to the Servicing Agreement or
this Supplement, which failure continues for five Business Days after
discovery of such failure by an officer of the Servicer or receipt by
the Servicer of written notice thereof from the Origination Trustee,
the Securitization Trustee or Investor Certificateholders representing
not less than 25% of the aggregate Percentage Interests;
(ii) The Origination Trustee or the Securitization
Trustee shall not have received any report relating to the 1996-B SUBI
Portfolio and required to be delivered to it pursuant to the Servicing
Agreement or this Supplement within ten Business Days after the date
any such report is due;
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(iii) The Servicer shall default in the due
performance and observance of any other provision of the Servicing
Agreement or this Supplement with regard to the 1996-B SUBI Portfolio,
which default materially and adversely affects the rights of holders
of 1996-B SUBI Certificates or the Investor Certificateholders, and
such default shall have continued for a period of 60 days after
written notice thereof shall have been given to the Servicer by the
Origination Trustee, the Securitization Trustee or by Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests;
(iv) The Event of Default set forth in Section
4.01(a)(iv) of the Servicing Agreement;
(v) The Event of Default set forth in Section
4.01(a)(v) of the Servicing Agreement;
(vi) Any representation, warranty or statement of the
Servicer made in the Servicing Agreement or this Supplement relating
to the 1996-B SUBI Portfolio or any certificate, report or other
writing delivered pursuant hereto or thereto relating to the 1996-B
SUBI Portfolio shall prove to be incorrect in any material respect as
of the time when the same shall have been made and, within 30 days
after written notice thereof shall have been given to the Servicer by
the Origination Trustee, the Securitization Trustee or Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests, the circumstance or condition in respect of
which such representation, warranty or statement was incorrect shall
not have been eliminated or otherwise cured;
(vii) The Servicer shall have failed to make an
Advance (other than any Nonrecoverable Advance) at the time and in the
amount required by Section 9.04 hereof, which failure continues for
five Business Days after discovery of such failure by an officer of
the Servicer or receipt by the Servicer of written notice thereof from
the Origination Trustee, the Securitization Trustee or Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests;
(viii) The Servicer shall have failed to pay promptly
any Insurance Proceeds pursuant to Section 9.12 hereof and Section
2.11 of the Servicing Agreement at the time such moneys would
otherwise be recoverable under the comprehensive, collision, public
liability and property damage policy required to be maintained by an
Obligor under the related Lease, which failure continues for five
Business Days after discovery of such failure by an officer of the
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Servicer or receipt by the Servicer of written notice thereof from the
Origination Trustee, the Securitization Trustee or Investor
Certificateholders representing not less than 25% of the aggregate
Percentage Interests; or
(ix) The Servicer shall have failed to perform its
obligations under Section 9.10 hereof with respect to the Contingent
and Excess Liability Insurance Policies or the Residual Value
Insurance Policy.
Notwithstanding the foregoing, a delay or failure in the performance
referred to under clause (i), (vii) or (viii) above for a period of ten
Business Days, or referred to in clause (ii) above for a period of 20 Business
Days, or referred to in clause (iii) for a period of 90 days, or referred to in
clause (vi) for a period of 60 days, shall not constitute a 1996-B Event of
Default if arising from a Force Majeure. Upon the occurrence of a Force
Majeure, the Servicer shall not be relieved from using all commercially
reasonable efforts to perform its obligations in a timely manner, and the
Servicer shall provide to the Trustee, the Origination Trustee, the Seller and
the Investor Certificateholders prompt notice of such failure or delay,
together with a description of its efforts to perform its obligations.
(b) Notwithstanding anything to the contrary in the Servicing
Agreement, the rights and powers of the Servicer may not be terminated with
regard to the 1996-B SUBI Portfolio absent a 1996-B Event of Default, as
further set forth below. The consequences of a 1996-B Event of Default shall be
as set forth in Section 4.01(b) of the Servicing Agreement with respect to an
Event of Default, as modified by this Section 11.01(b). For those purposes,
references in Section 4.01(b) of the Servicing Agreement, to an Event of
Default shall mean a 1996-B Event of Default. Further, in the case of the
1996-B SUBI, references to "the holder of the requisite percentage of any SUBI"
shall refer either to the Securitization Trustee, or to Investor
Certificateholders representing not less than 51% of the aggregate Percentage
Interests. If a 1996-B Event of Default shall have occurred and be continuing,
the Origination Trustee, on behalf of the Origination Trust, upon the direction
of the Securitization Trustee or Investor Certificateholders representing not
less than 51% of the aggregate Percentage Interests, shall, by notice given to
the Servicer, terminate the portion of the rights and powers of the Servicer
under the Servicing Agreement, as supplemented by this Supplement, with respect
to the 1996-B SUBI Portfolio. Upon the giving of any such notice described in
the preceding sentence or in Section 4.01(b) of the Servicing Agreement, all
rights, powers, duties and responsibilities of the Servicer under the Servicing
Agreement, as supplemented by this Supplement with respect to the 1996-B SUBI
Portfolio, whether with respect to the related Lease
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Documents, the related Title Documents or Lease Records, the 1996-B SUBI
Collection Account, the Distribution Account, any 1996-B Lease Funding Account,
the Reserve Fund, the Residual Value Surplus Account, the Servicing Fee or
otherwise, but excluding the obligations set forth below as being retained by
the Servicer, shall vest in and be assumed by the Trust Agent or, if the Trust
Agent declines to act as successor servicer as permitted below, a new servicer
as provided in Section 4.01(b) of the Servicing Agreement, and each of the
Trust Agent and the Origination Trustee is each hereby irrevocably authorized
and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments (including
any notices to Obligors deemed necessary or advisable by the Trust Agent or
Origination Trustee), and to do or accomplish all other acts or things
necessary or appropriate to effect such vesting and assumption, including,
without limitation, directing the Obligors to remit Monthly Contract Payments,
Prepayments and all other payments on or in respect of the 1996-B Leases and
the 1996-B Leased Vehicles to an account or address designated by the Trust
Agent or such new servicer. Further, in such event, the Servicer shall use
commercially reasonable efforts to effect the orderly and efficient transfer of
the servicing of the 1996-B Leases to the Trust Agent or new servicer, and as
promptly as practicable, the Servicer shall provide to the Trust Agent or new
servicer, as the case may be, a current computer tape containing all
information from the Lease Records required for the proper servicing of the
1996-B Leases, together with documentation containing any and all information
necessary for use of the tape. The Trust Agent may resign or decline to serve
as the Servicer of the 1996-B SUBI Portfolio by giving written notice of such
resignation or declination to the Origination Trustee and the Securitization
Trustee and in such event will be released from such duties and obligations,
such resignation or declination and such release not to be effective until the
date a new servicer enters into a servicing agreement with the Origination
Trustee as provided in Section 4.01(b) of the Servicing Agreement and the
Origination Trustee and Securitization Trustee receive from each Rating Agency
a letter approving such substitute servicer. Upon delivery of any such notice
to the Origination Trustee, the Origination Trustee shall use its commercially
reasonable efforts, upon not less than 30 days' prior written notice to the
Securitization Trustee and the Investor Certificateholders, to obtain a new
servicer for the 1996-B SUBI Portfolio, which shall be an Eligible Servicer,
and which shall enter into a servicing agreement with the Origination Trustee
as provided in Section 4.01(b) of the Servicing Agreement. If, within 30 days
after the delivery of the notice to the Origination Trustee and the
Securitization Trustee referred to above, the Origination Trustee shall not
have obtained such a new servicer for the 1996-B SUBI Portfolio, the
Securitization Trustee may appoint, or may
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petition a court of competent jurisdiction to appoint, a successor servicer to
service the 1996-B Leases.
No termination of the Servicer as to the 1996-B SUBI Portfolio
shall affect the obligations of the Servicer pursuant to Section 2.01(b)(i) of
the Servicing Agreement, Section 2.11 of the Servicing Agreement or Section
9.10 hereof, Section 2.07(g) of the Servicing Agreement or Section 9.08 hereof,
Section 8.03 hereof, Section 9.02(a) hereof (as to any 1996-B Lease the
Maturity Date of which has been extended beyond the specified limit by the
Servicer), or Section 9.01(a) hereof.
The Origination Trustee shall give prompt notice to each
Rating Agency of any termination of the Servicer affecting the 1996-B SUBI
Portfolio pursuant to this Section 11.01(b) or pursuant to Section 4.01(b) of
the Servicing Agreement.
SECTION 11.02. NO EFFECT ON OTHER PARTIES.
Upon any termination of the rights and powers of the Servicer
with respect to the 1996-B SUBI Portfolio from time to time pursuant to Section
11.01 hereof or Section 4.01 of the Servicing Agreement, or upon any appointment
of a successor to the Servicer with respect to the 1996-B SUBI Portfolio, all
the rights, powers, duties and obligations of the Origination Trustee, the UTI
Holder and the Seller under this Agreement, the Securitization Trust Agreement,
the 1996-B SUBI Supplement, or any other Origination Trust Document shall remain
unaffected by such termination or appointment and shall remain in full force and
effect thereafter, except as otherwise expressly provided herein or therein.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TERMINATION OF AGREEMENT.
(a) In connection with any purchase by the Seller of the
Investor Certificateholders' interest in the corpus of the Securitization Trust
pursuant to Section 7.02 of the Securitization Trust Agreement, and the
Seller's then succeeding to all of the interest in the 1996-B SUBI represented
by the 1996-B SUBI Certificates, and if the UTI Holder shall thereafter succeed
to such interest in the 1996-B SUBI, the Servicer, upon the direction of the
UTI Holder as provided in Section 11.05 of the 1996-B SUBI Supplement, shall
reallocate all 1996-B Leases, 1996-B Leased Vehicles and related 1996-B SUBI
Assets to the UTI Portfolio.
(b) Except as provided in this Section 12.01, the
respective duties and obligations of the Servicer and the Origination Trustee
with respect to the 1996-B SUBI Portfolio
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created by the Servicing Agreement and this Supplement shall terminate upon the
termination of the Securitization Trust Agreement pursuant to Section 7.01
thereof or upon the earlier termination of the Servicing Agreement pursuant to
Section 5.01 thereof. Upon such a termination, the Servicer shall pay over to
the Origination Trustee or any other Person entitled thereto all moneys held by
the Servicer with respect to the 1996-B SUBI Portfolio pursuant to the
Servicing Agreement and this Supplement.
SECTION 12.02. AMENDMENT.
(a) Notwithstanding Section 5.02(a) of the Servicing
Agreement, the Servicing Agreement, as supplemented by this Supplement, to the
extent that it deals with the 1996-B SUBI Portfolio, may be amended from time
to time in a writing signed by the Origination Trustee, on behalf of the
Origination Trust, the Trust Agent (but only to the extent that such amendment
deals with Section 11.01(b)) and the Servicer, with the prior written consent
of the Securitization Trustee, which shall be given only in the circumstances
contemplated by Section 9.01 of the Securitization Trust Agreement.
(b) The Servicer shall provide each Rating Agency (as
defined in the Securitization Trust Agreement) prior notice of the content of
any proposed amendment to the Servicing Agreement, whether or not such
amendment relates to the 1996-B SUBI or requires approval of any Rating Agency.
SECTION 12.03. GOVERNING LAW.
THIS SUPPLEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
SECTION 12.04. NOTICES.
The notice provisions of Section 5.04 of the Servicing
Agreement shall apply equally to this Supplement provided that any notice to
the Securitization Trustee shall be addressed as follows:
First Bank National Association
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Office
SECTION 12.05. SEVERABILITY.
If one or more of the provisions of this Supplement shall be
for any reason whatever held invalid or unenforceable,
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such provisions shall be deemed severable from the remaining covenants,
agreements and provisions of this Supplement, and such invalidity or
unenforceability shall in no way affect the validity or enforceability of such
remaining covenants, agreements and provisions, or the rights of any parties
hereto. To the extent permitted by law, the parties hereto waive any provision
of law that renders any provision of this Supplement invalid or unenforceable
in any respect.
SECTION 12.06. INSPECTION AND AUDIT RIGHTS.
The Servicer agrees to afford the same inspection and audit
rights to any representative or designee of the Securitization Trustee as
granted to any representative or designee of the Origination Trustee pursuant
to Section 5.06 of the Servicing Agreement, but only with respect to the books
of account, records, reports and other papers of the Servicer relating to the
1996-B SUBI Portfolio.
SECTION 12.07. BINDING EFFECT.
The provisions of the Servicing Agreement and this Supplement,
insofar as they relate to the 1996-B SUBI Portfolio, shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of the
parties hereto, and shall inure to the benefit of the Origination Trustee, on
behalf of the Origination Trust, and the Securitization Trustee.
SECTION 12.08. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
SECTION 12.09. EXECUTION IN COUNTERPARTS.
This Supplement may be executed in any number of counterparts,
each of which so executed and delivered shall be deemed to be an original, but
all of which counterparts shall together constitute but one and the same
instrument.
SECTION 12.10. RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or
reserved to the Origination Trustee, on behalf of the Origination Trust, the
Servicer or the Securitization Trustee or to any or all of the foregoing are
cumulative, and none is intended to be exclusive of another. No delay or
omission in insisting upon the strict observance or performance of any
provision of this Agreement, or in exercising any right or remedy, shall be
construed as a waiver or relinquishment of such provision, nor shall it impair
such right or remedy. Every
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right and remedy may be exercised from time to time and as often as deemed
expedient.
SECTION 12.11. FURTHER ASSURANCES.
Each party will do such acts, and execute and deliver to any
other party such additional documents or instruments as may be reasonably
requested in order to effect the purposes of this Supplement and to better
assure and confirm unto the requesting party its rights, powers and remedies
hereunder.
SECTION 12.12. THIRD-PARTY BENEFICIARIES.
The Servicing Agreement and this Supplement, insofar as they
relate to the 1996-B SUBI Portfolio, will inure to the benefit of and be
binding upon the parties hereto, and each of the holders of any legal or
beneficial interest in the 1996-B SUBI Certificates (including without
limitation the Securitization Trustee and the Certificateholders), who shall be
considered to be third-party beneficiaries hereof. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers duly authorized as
of the day and year first above written.
WORLD OMNI FINANCIAL CORP.
By:________________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
VT INC., as
trustee of World Omni LT
By:________________________________
Name:______________________________
Title:_____________________________
WORLD OMNI LEASE SECURITIZATION L.P.
(solely for purposes of Section 9.14)
By: WORLD OMNI LEASE SECURITIZATION,
INC., its general partner
By:________________________________
Xxxxxxx X. Xxxxxxxxx
Assistant Treasurer
FIRST BANK NATIONAL ASSOCATION, as
Trust Agent (solely for purposes of
Section 11.01(b))
By:________________________________
Name:______________________________
Title:_____________________________
33
38
Acknowledged and Agreed:
FIRST BANK NATIONAL ASSOCIATION, as
Securitization Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
34
39
EXHIBIT A
SCHEDULE OF 1996-B LEASES AND
1996-B LEASED VEHICLES AS OF THE INITIAL CUTOFF DATE
[Omitted. Copies on file with the Servicer, the Trustee and
the Securitization Trustee.]
A-1
40
EXHIBIT B
FORM OF SERVICER'S CERTIFICATE
B-1
